U.S. Supreme Court deems half of Oklahoma a Native American reservation
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Re: U.S. Supreme Court deems half of Oklahoma a Native American reservation
#862We have to recognize how much we screwed over the Native Americans. We took away their prime land on the East coast. We gave them some shitty land in Oklahoma that we didn't think we would ever want. We made them walk there in the "Trail of Tears", and lots of them died along the way. Then we decided to screw them out of the land in Oklahoma after all, but didn't go though the process properly because we didn't think…
Re: U.S. Supreme Court deems half of Oklahoma a Native American reservation
#863Earlier quoted context omitted.
Perhaps because they're not "rights"; they're legally-granted privileges. I agree that this sort of law is bonkers, but understand that no one has a "right" to own land[0]. That's a privilege conferred by legal frameworks, and only works because we all more or less agree to abide by them and live in civil society. [0] The US Constitution does not grant this right, and in fact the Framers were well aware of the divide…
The source of the possession being law is understandable. I guess what is bonkers or could use some (historical?) explanation is why real property is given an allowance to be taken through use by others, when the ownership of the land is recorded (though probably unmarked physically). To some, extending that logic might say, I have a right to take this bike because it's just sitting in front of a house unused. Is it…
AFAIU, title recordation is a relatively recent thing. And the logic of adverse possession, which I think is a vestige of early statutes of limitations (retained out of principle or ad hoc, I dunno), mirrors the logic of later equitable remedies. Fundamentally, adverse possession doesn't magically transfer title, but because the court refuses to grant the ejectment request of the prior possessor who sat on his rights, the person in possession thus has better title than anyone else in the world in terms of what can be claimed in court.
More generally that reflects the logic of traditional property law under the Common Law--ownership is about having better rights to possession than anyone else in a relative sense, not about some singular, abstract title. Emphasis on formal properly titles is how you distinguish continental Civil Law from Common Law, or from many of the rules that controlled prior to the emergence of the Common Law.[1] Once courts of Equity came about you could then ask the court to quiet title, which can be used to change any formal title registrations and prevent future litigation, though technically that would have been (and often remains) unnecessary to legally deed such property. And adverse possession has been so well established for so long that most jurisdictions have kept it enshrined in statute. Though like the Rule Against Perpetuities, many jurisdictions have eviscerated it.
[1] There are actually strong arguments that formal title requirements are a barrier to the development of more egalitarian economies. Formal titles seem an obvious and easy solution when you're in the elite, or in the context of an already well-developed political and economic environment. But formalisms often make it too easy for the rich and sophisticated to screw over the poor--you take their money, you give them possession, then at some later date (maybe even a later generation) it's all taken away because nobody ever got the valid imprimatur of some bureaucrat. You would think such a simple rule would benefit the poor, but that's not how it plays out it practice. Some economists argue these effects remain consequential in many Latin American and other jurisdictions, particularly ex-colonies of continental powers like France and Spain. In the domains of property and contract law, China has quite deliberately incorporated many Anglo-American principles and rules in its legal reforms precisely because formalisms can create hidden costs far greater than what they seem to save. And I think traditional Chinese property law, at least, also leaned in a similar direction, which is why the phenomenon of so-called nail houses existed in the first place--because the courts recognized (albeit haphazardly) certain possessory entitlements that didn't arise from any formal title, which in communist China were few and far between.
Re: U.S. Supreme Court deems half of Oklahoma a Native American reservation
#864Earlier quoted context omitted.
I had a different feeling. It wasn't empty in the sense that the desert is, which is very pleasant and beautiful, but scarred with industrialized agriculture, and silos stretching out into the infinite surrounding. The fact that there was absolutely nothing at all as far as the eye can see, no mountain or woods, just field upon industrial field with no farm house or town in sight, felt extremely isolating and uncomfo…
There's a big difference between Eastern Oklahoma and Western Oklahoma. GP's description sounds like Eastern Oklahoma which is more similar in landscape and vegetation to places in Arkansas and Missouri like the Ozarks. Your description sounds like Western Oklahoma. I lived there from age 12 to 20 and yes it's exactly as you describe, getting worse the farther West you go in the state. Dystopian agriculture. Although…
The dividing line you describe is the area between the 98th and 100th meridian.
Re: U.S. Supreme Court deems half of Oklahoma a Native American reservation
#865Earlier quoted context omitted.
Originalism is degenerate legal philosophy. Textualism is all that is valid. We will look back at some of those ridiculous uncited rulings that speak about “how the writers felt given the time” as foolishness.
Coming across these terms for the first time, and after reading some material online, it seems these two ideas are mildly compatible? Especially with Justice Scalia being identified as both a originalist and textualist. Would you mind explain the difference?
Textualism involves interpreting words with the same meaning that they would have had at the time whey were written.
Originalism involves interpreting words in the same way they would have been intended at the time when they were written.
To express the crux of the difference, I've seen multiple sources use the example of "cruel and unusual punishment".
Textualism would look at the words: what did "cruel" and "unusual" mean in the 1790? Do those definitions describe a particular punishment?
Originalism would instead consider intent: would a particular punishment have been considered to be "cruel and unusual" in 1790?
Beyond the obvious, what they have in common is what they don't consider: purpose, history, or present meaning.
For fun:
Purposivism would consider the purpose of the clause: is a punishment the sort of thing the clause was written to protect against?
Doctrinalism would look at the way the clause has been interpreted by the court in the past: how does the punishment under consideration compare to punishments previously considered cruel and unusual?
Structuralism would examine the clause and its relationship to the rest of the document in which it was written: perhaps the fact that the clause follows "Excessive bail shall not be required, nor excessive fines imposed ..." offers guidance.
Judicial pragmatism would consider the context, apply inductive reasoning, and consider the future implications of a ruling. (I don't think I've summarized this one well https://www.iep.utm.edu/leglprag/#H2 may be useful.)
Re: U.S. Supreme Court deems half of Oklahoma a Native American reservation
#866Re: U.S. Supreme Court deems half of Oklahoma a Native American reservation
#867Earlier quoted context omitted.
> Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law And yet "adverse possession" allows my neighbor to keep a slice of my yard, because he build the fence shortly before I bought the house (while it was unoccupied!) and I assumed it was proper after I moved in, and now that I've had a survey done and realized his fence is 5' off target, it's too late because he official…
What you're referencing is probably a "prescriptive easement" and is legal (depending on your jurisdiction). If your jurisdiction does not have "adverse possession" or "prescriptive easement" laws, you can probably tear that fence down or do whatever else you want with it. (IANAL and please just talk to your neighbors first!) None of this is related, either legally or in spirit, with the sentence you cited. The cited…
No, what he is describing is adverse possession, which is different from prescriptive easement; adverse possession converts ownership, prescriptive easement provides an easement (usage rights without ownership.)
> and is legal (depending on your jurisdiction).
No, adverse possession and prescriptive easement are both conditioned on open and notorious trespass, which is an illegal action.
Re: U.S. Supreme Court deems half of Oklahoma a Native American reservation
#868Earlier quoted context omitted.
It’s one thing to be obligated to follow the law of the country. But it’s another to be assigned moral guilt for things you have no involvement in.
what about guilt for the quantitative benefits you derive from no other reason but the position of your birth, often at the expense or detriment of others who suffer from the position of theirs?
Re: U.S. Supreme Court deems half of Oklahoma a Native American reservation
#869We have to recognize how much we screwed over the Native Americans. We took away their prime land on the East coast. We gave them some shitty land in Oklahoma that we didn't think we would ever want. We made them walk there in the "Trail of Tears", and lots of them died along the way. Then we decided to screw them out of the land in Oklahoma after all, but didn't go though the process properly because we didn't think…
I find your use of "we" interesting because you clearly identify as part of the group that committed those acts hundreds of years ago. How long should a child be responsible for the crimes of their fathers? As an example, assume your father killed someone and stole $1000 dollars from them. You never knew about this didn't choose for him to do this but now someone is coming after you saying you must pay them $1000. Yo…
Re: U.S. Supreme Court deems half of Oklahoma a Native American reservation
#870Earlier quoted context omitted.
It’s one thing to be obligated to follow the law of the country. But it’s another to be assigned moral guilt for things you have no involvement in.
what about guilt for the quantitative benefits you derive from no other reason but the position of your birth, often at the expense or detriment of others who suffer from the position of theirs?